PETERS & KENNEDY
[2010] FamCAFC 117
•23 June 2010
Family Court Of Australia
| PETERS & KENNEDY | [2010] FamCAFC 117 |
| FAMILY LAW - PRACTICE AND PROCEDURE – Procedural fairness – Whether the Federal Magistrate denied the applicant procedural fairness – Where there is a complaint of “trial by surprise” – Where the Federal Magistrate failed to comply with the guidelines in relation to unrepresented litigants even though the litigant was a lawyer by profession – Where the Federal Magistrate conducted the hearing in a manner that was not authorised by the Act or the Rules and this caused a significant procedural unfairness to the Father – Where the Federal Magistrate failed to properly consider the material in the submissions of the Father when he applied the approach suggested in Rice v Asplund – Where the Federal Magistrate failed to provide adequate reasons FAMILY LAW - REDETERMINATION – Appeal allowed – That the matter be remitted for rehearing FAMILY LAW - COSTS – Reserved |
| Jacobs & Vale (2008) FMCAfam 641 Johnson and Johnson (1997) FLC 92-764 Re F: Litigants in person guidelines (2001) FLC 93-072 Rice v Asplund (1979) FLC 90-725 S v R (1999) FLC 92-834 Sheen & Paulo (2007) FamCA 1175 Stead v State Government Insurance Commission (1986) 161 CLR 141 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 |
| Family Law Act 1975 (Cth) Federal Magistrates Act1999 (Cth) Family Law Rules 2004 Federal Magistrates Court Rules 2001 |
| APPELLANT: | MR PETERS |
| RESPONDENT: | MS KENNEDY |
| FILE NUMBER: | MLC | 1806 | of | 2009 |
| APPEAL NUMBER: | SA | 42 | of | 2009 |
| DATE DELIVERED: | 23 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 26 August 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 460 |
Representation
| APPELLANT IN PERSON: | Mr Peters in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Ramsey |
| SOLICITOR FOR THE RESPONDENT: | Wightons Lawyers |
Orders
The appeal be allowed.
The application filed on 3 March 2009 on behalf of the Appellant be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Turner.
The response filed on 7 April 2009 on behalf of the Respondent be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Turner.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.
Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.
Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6 the date upon which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Peters & Kennedy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 42 of 2009
File Number: MLC 1806 of 2009
| MR PETERS |
Appellant
And
| MS KENNEDY |
Respondent
Reasons For Judgment
Introduction
This is an appeal by Mr Peters (“the Father”) against orders made by Federal Magistrate Turner on 7 April 2009 summarily dismissing an application of the Father for parenting orders and granting an application by Ms Kennedy (“the Mother”) for parenting orders. The Respondent to the appeal is the Mother. Both parties sought a variation of final parenting orders made on 9 July 2007.
The Mother lives in Geelong and the Father lives in L. L is approximately one and a half hour drive north of Geelong. Pursuant to the orders made on 9 July 2007 the changeover point for the child between the parents was initially at K and then as from October 2007 at Business A, located at C. In consequence of the orders of 7 April 2009 the changeover point is now at K.
The Mother proposes to change the residence of the child to S which is south of Geelong.
Counsel for the Mother contended before the Federal Magistrate that the “time frame” from C to Geelong is about 50 minutes and S is about 30 minutes from Geelong. I observe that the distance from L to C is about 30.5 km. The distance from C to North Geelong is about 67 km. The distance from Geelong to S is about 43 km. K is approximately 78 km or 58 minutes driving distance from L; approximately 29 km or 27 minutes driving distance from Geelong; and approximately 72 km or 70 minutes driving distance from S.
Before me, and also the Federal Magistrate, the Father appeared without legal representation. The Mother was represented by counsel.
On 19 May 2009 the Chief Justice made an order pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge.
Background
The Father was born in 1955. The Mother was born in 1979.
There is one child of the relationship born in mid 2005.
On 24 October 2005 the Mother filed an application in the Federal Magistrates Court in Melbourne and on 7 November 2005, by consent, parenting orders were made.
On 3 August 2006 the Father filed in the Federal Magistrates Court an application for final parenting orders.
On 9 July 2007 the matter was listed for trial before Federal Magistrate Hughes. The parties reached agreement on all but one issue being the handover point when the Father was to spend weekend time with the child.
On 9 July 2007 by consent the Federal Magistrate made the following orders:
1. That all previous parenting orders be discharged
2. That the mother and Father have equal shared parental responsibility for the child of the relationship namely; … born [ … ] 2005.
3. That the child lives with the Mother.
4. That the Father be and hereby is restrained from taking the child to his property at [L] without the written consent of the mother or an order of the Court.
5. That within 7 days of the making of these Orders the Father shall:
a)Provide the mother with a written independent expert safety report indicating the safety issues in the report of [Dr D] have been addressed, and;
b)Provide the mother with a medical certificate from his general practitioner or other specialist confirming that the Father has no medical condition likely to impact upon his ability to care for the child.
6. That within 7 days of the making of these orders the mother shall:
a)Contact Centcare [ … ] and inform them of her acceptance or non-acceptance of the proposed mediation between herself and [Ms J]
i.Such mediation to take place in the absence of the Father, to meet and discuss parenting issues relating to the child in accordance with the recommendations of [Dr D] in his report of 16th January 2007
iiSuch mediation to occur with an independent mediator appointed by [ … ] Centacare at a time and place nominated by Centacare.
7. That the child shall spend time with the Father as follows
a)Commencing 14th July 2007 each alternate Saturday from 9.00am until 4.00pm Saturday at the Father’s home at [L];
b)From 20th October 2007 each alternate weekend (in the same pattern) from 9.00am Saturday until 4.00pm Sunday;
c)From 1st May 2008 each alternate weekend (in the same pattern) from 6.30pm Friday until 4.00pm Sunday;
d)From 4.00pm Christmas Day until 4.00pm Boxing Day each year;
e)From 11.00am on 31st December each year until 4.00pm New Years Day;
f)At further and other times as may be agreed.
8. That in the event the Father’s home at [L] is no longer available for the Father to utilize during any period the child is in his care then the parties shall negotiate an alternative venue. In the event the parties fail to resolve the issue between them, each party shall be at liberty to make an urgent application for variation of these orders.
9. The Father shall be in substantial attendance during all periods of his time with the child.
10. That in the event the Mother seeks to have any holiday periods with the child which otherwise impact upon the Father's fortnightly time,
a)the mother shall provide 28 days notice in writing of such holiday period (including make-up time proposals),
b)during such times the Father’s time shall be suspended,
c)the Mother shall provide make-up time upon the conclusion of the holiday period
d)such time not to exceed 2 weeks at any given time
e)such times not to exceed 4 weeks in each calendar year, unless agreed otherwise in writing
f)such times are not to interfere with Christmas or Easter time with the Father.
11. That within 7 days of the making of this order the Mother shall provide the Father with a copy of the child's Christening certificate.
12. That each of the parties be and hereby are restrained from using the child’s image on the internet other than at his express request and with the other party's written consent.
13. Certify for Advocacy
AND THE COURT NOTES:
14. That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
15. The parties agree the child is to be raised in the uniting Church faith.
16. It is the Father’s preference that the child attend State schools.
I observe that an order was made that the Father and the Mother have equal shared parental responsibility for the child.
Federal Magistrate Hughes then delivered reasons on the issue of the “handover point” and made the following orders:
17. That for the purpose of handover, for the first 3 months, handover of the child will occur at [K] unless agreed otherwise between the parties and evidenced in writing.
18. That from 9 October 2007, unless otherwise agreed in writing, the mother shall deliver the child to his father at [Business A] at the commencement of the time [the child] is to spend with his father and the father shall return the child to his mother at the [K] at the conclusion of that time.
19. That the parties shall utilise a communication book to travel with the child between the households, in which each party will note issues concerning [the child]’s welfare such as his state of health, whether or not he has recently eaten, whether he needs sleep, advice about recent immunisation, medication and the like.
20. For the purpose of this order above, the mother of the child shall provide the communication book to the father at the first handover following these orders.
In her reasons Federal Magistrate Hughes said:
2. The issue of the handover point was unable to be resolved between the parties. They have a long history of litigation. There have been allegations made by each of them against the other. The mother asserts that she is intimidated by the father, but I accept the statement by the father when he was giving evidence that there is no evidence of any violence or verbal abuse or anything of that nature.
3. The real issue in these proceedings is that both parties are under significant financial strain at the moment. The mother of the child with whom the child lives is working two days a week. She receives some sort of supplementary income from Centrelink, and she receives child support from the father of the child. The father concedes readily and reasonably that he is in a superior financial position. He currently earns $600 a week. He also owns some property in relation to which he has costs. The property is rented out and he receives some income from that property which largely offsets the mortgage in relation to the property.
4. Although the father is in a superior financial position, he has significant debts and I accept that he is under financial pressure as well. I bear in mind that the father has, without question, borne the burden of transport in order to see the child until now. He has a good vehicle which is reliable and safe. The mother has a much older vehicle which is starting to break down and which will need to be replaced. The mother's evidence is that she hopes to replace it within about 12 to 18 months.
5. The mother has the support of family and friends in [G]. It was suggested that she might borrow someone else's vehicle. No-one else gave evidence, and I am certainly not in a position to order that anyone else provide a vehicle for the mother. Having listened to each of the parties give evidence orally and having read their affidavit material and having heard submissions from Mr McLeod, it is my view that it is appropriate that the transport be shared. However, I am prepared to give the mother a three-month period in which I will require the father to continue to do the transport. So she will have three months from now to try to make arrangements to borrow a better car or see what she can do about obtaining a different car herself or making sufficient minor repairs on her vehicle to make it roadworthy.
6. So what I propose to do is order that from three months from today, the handover point be such that the transport of the child be shared. I accept the evidence of the mother that if that is to be the case, she would prefer to hand the child over to the father in [C] because she says that she doesn't have any difficulty releasing the child and having the child go to his father. She is more concerned about the hand-back of the child because she says that there have been occasions - three in number - in which there was some difficulty in her obtaining the child back from the father. If the hand-back occurs in [K], the mother's grandmother is able to accompany her. It seems there is no issue between the maternal great grandmother and the father, and the hand-back should be very smooth. The father of the child has no issue about that. He is equally content for the hand-back to be in [K], provided the mother delivers the child to him at [C].
7. In those circumstances, I will make the orders as set out in the minute of consent orders. I will separately make specific orders for the handover point. I will also make an order in relation to a communication book as both of the parties have indicated their preparedness to use that communication book for the benefit of [the child].
As I have already observed, pursuant to the orders made on 9 July 2007 the changeover point for the child between the parents was initially at K and then as from October 2007 at Business A. As from October 2008 the changeover point changed to Business B at C. It also appears, but was never adequately explained, that the parents also continue to meet at K for changeovers and this was suggested by the Mother in paragraph 15 of her affidavit of 6 April 2009 and was referred to by the Father in discussion at the hearing (Transcript, 7 April 2009, p 23).
On 3 March 2009 the Father filed an application in the Federal Magistrates Court in which he sought both final and interim parenting orders. The Father sought that Orders 5, 6, 7, 10, 11, 17, 19 and 20 made on 9 July 2007 “be discontinued”. The Father sought other orders.
In support of his application the Father swore an affidavit on 3 March 2009. In the affidavit the Father said:
1. The parties have a complete breakdown in communication and are incapable of reaching agreement on the appropriate Father contact time for the child.
2. The Mother has breached the orders made on 9 July 2007 by her Honor [sic] Hughes as follows:
Order 6 The mother did not engage in mediation with [Ms J] and made herself unavailable to attend to the extent that after 3 months the Mediator closed the file.
3. The Mother has not answered the fathers [sic] enquiries about kindergarten enrolment, toilet training and carers.
4. The Mother has with held the communication book since January 2009.
5. The Mother has unilaterally changed the pick up venue for the child.
On 7 April 2009 a response was filed on behalf of the Mother. The Mother sought both interim and final orders. The Mother sought that the Father’s application be dismissed. The Mother also sought that order 18 of 9 July 2007 be varied so that the Father “collect the child from and return the child to [Geelong] at the commencement and conclusion of all times the child spends with the father”. In support of her application the Mother swore an affidavit on 6 April 2009.
In the written summary of argument of the Mother it was submitted that in her response dated 7 April 2009 she sought that the Father’s application for final and interim orders be dismissed. It was stated that the basis of such application was that the Father had failed to disclose in his supporting affidavit any evidence to establish a change in circumstance to support his application filed on 3 March 2009. However, in her response the Mother also sought that order 18 made on 9 July 2007 be varied so that the Father collect the child from and return the child to Geelong.
The return date given to the Father’s application filed on 3 March 2009 was 7 April 2009 and on that day it came before Federal Magistrate Turner. It is necessary to consider what happened on that day. The Father appeared without legal representation. The Mother was represented by counsel.
On 7 April 2009, shortly before the commencement of the hearing before the Federal Magistrate, the Father was given a copy of the response of the Mother and her affidavit of 6 April 2009. The Mother contended that the reason for the late availability of her material was because she was awaiting approval of a grant of legal aid. A copy of the response and affidavit was handed to the Federal Magistrate after the hearing commenced.
I have considered very carefully what is revealed in the transcript of 7 April 2009 as to what transpired on that day. The matter first came before the Federal Magistrate at 10.34 am.
At 10.37am the hearing was adjourned for seven minutes and resumed at 10.44 am. The Father then proceeded to tell the Federal Magistrate what he was seeking. The Father said that he was “seeking an extension of contact due to changed circumstances and that it’s in the best interests’ of [the child]” (Transcript, 7 April 2009, p 5).
Counsel for the Mother then interrupted and said that there was a “strong possibility that this process can be short-circuited” and that the Mother sought that the application of the Father be dismissed because “there’s a threshold question” that the Father did not set out in his affidavit any evidence of a change in circumstances. Counsel for the Mother complained that the Father’s affidavit was “totally and utterly inadequate”. Counsel for the Mother was allowed to make a lengthy submission in support of this contention (Transcript, 7 April 2009, pp 6 to 7).
I observe, however, that counsel for the Mother said: “The only matter that we would look at, your Honour, and that relates to the father’s paragraph 5 about the change of pick-up. The mother has addressed herself in her response and supporting affidavit”. The Federal Magistrate said: “So, Mr Ramsey, you say there’s some possibility of agreement on the issue of pick-up” to which counsel for the Mother said “Yes” (Transcript, 7 April 2009, p 7). I observe that thereafter the hearing proceeded to conclusion and no opportunity was sought to enable the parties to have the discussions envisaged by counsel for the Mother. In fact, counsel for the Mother later resiled from what he had told the Federal Magistrate and said that he did not think that there was any prospect that there would be an agreement.
The Federal Magistrate then advised the Father that “to change final orders [he had] to show there are some circumstances which were not before the court when the matter was determined or there have been significant changes since that date”. The Federal Magistrate then asked the Father: “What are the changed circumstances?” I observe that at this point the Federal Magistrate said that in the Father’s affidavit there did not “seem to be any changed circumstances” (Transcript, 7 April 2009, p 7).
Thereafter there was discussion between the Federal Magistrate and the Father. I am not going to repeat all of what was said. However, it is clear that inter alia the Father was relying upon the breakdown in communication between the parents and the lack of the communication book.
The Father did say: “I’m merely raising that the complete breakdown in communication is a substantial change in circumstance that gives rise to the need for further orders” (Transcript, 7 April 2009, p 10). The Father also said:
Well, it’s non-existent and in the parenting of a child that’s critical. It’s been clearly operating to the detriment of [the child] and that’s why I put in my affidavit the issues there, the really important psychological issues of toilet training and anything else. I don’t know where my son lives. I don't know where - this kindergarten is the first time I’ve even heard about it. There’s just no information flow to me from the mother. Now, there are additional changes. (Transcript, 7 April 2009, p 10)
I observe that there was the following exchange (Transcript, 7 April 2009, pp 10 to 11):
HIS HONOUR: Where in that order is there an order that you’re to be notified of the address where your son is living?
[The Father]: There’s none at all, your Honour. There is the shared
HIS HONOUR: Just think about that. That means there is no breach of those orders and nothing has changed relevant to those orders.
[The Father]: Your Honour, the breakdown in communication is relevant to the shared parental responsibilities legislation.
HIS HONOUR: I don’t think you heard my question.
At one point the Federal Magistrate asked the Father if he was seeking an adjournment to deal with the documents of the Mother. There was the following exchange (Transcript, 7 April 2009, p 12):
[The Father]: Well, it’s got to the point, your Honour, where, as I said in my affidavit, the parties are incapable of negotiating anything.
HIS HONOUR: Where does it say in the orders that you should negotiate anything?
[The Father]: Well, your Honour, again it’s a changed circumstance argument, not an allegation of breach. There are other circumstances which are relevant, your Honour. I was hoping to negotiate those with the mother’s solicitors, but they only came on line yesterday, as far as I’m aware, and we had the short service of the documents that I’m struggling to deal with today.
HIS HONOUR: So are you seeking an adjournment to deal with the content of the document you say was - these were served on you last night, were they?
[The Father]: This morning, your Honour. They’re short documents. I think the substance of them is that we basically have a contest over travel and increased contact with myself. I don't think the argey-bargey, if I can put it like that, of two disgruntled parents is going to take the matter any further for [the child]. I think that's a fundamental dispute. I don't know if my learned friend can add any other.
There was then the following exchange between the Federal Magistrate and the Father (Transcript, 7 April 2009, pp 12 to 13):
HIS HONOUR: As I understand it, Mr Ramsey is saying there should be no change to the orders of Hughes FM. They were made with a developing - or made to comply with the development of the age of the child and there are no changed circumstances, therefore they should be left in place. But he is willing to negotiate on behalf of his client in relation to the changeover point or pick‑up point.
[The Father]: Your Honour, I don’t think the presumption that her Honour Hughes made an 18‑year‑old parenting order can be read into those orders. They’re very straightforward, very minimalist. They allow for a maximum of two nights overnight contact a fortnight. I have the time available to provide much more than that. I’ve always had the time available to provide much more than that.
MR RAMSEY: I’m objecting, your Honour, it’s not in his affidavit.
HIS HONOUR: It’s not really the issue that you can provide more time. The issue is why should the court vary final orders.
[The Father]: Well, indeed, your Honour, and it had only been the case, as I understand it, of substantial change in circumstances and that it’s clearly in the best interests of [the child]. Do I have that correct, your Honour? I’m not sure if I’ve missed ---
HIS HONOUR: Sorry, I don't answer questions from the bar table.
The Federal Magistrate sought submissions from counsel for the Mother who very briefly said that the lack of communication was not a “substantial circumstance” (Transcript, 7 April 2009, p 13).
Then, without invitation from the Federal Magistrate or having made an inquiry as to whether the application of the Mother could be heard or whether the Father was in a position to deal with the application, counsel for the Mother launched into submissions in relation to the variation sought by the Mother of Order 18 of the final orders. (Transcript, 7 April 2009, p 14).
It is convenient to set out what was said (Transcript, 7 April 2009, pp 14 to 18):
MR RAMSEY: So, as I’ve said before, your Honour, the only issue that I would submit to the court is the changeover arrangements.
HIS HONOUR: Which order is that referring to, Mr Ramsey?
MR RAMSEY: What we’re asking for you’ll find in the response, your Honour, and it says in paragraph 2 that at paragraph 18 of the order of the Federal Magistrates Court on 9 July be varied so that the [Father] collect the child from and return the child to … Geelong at the commencement and conclusion of all times the child spends with the father. In paragraph 18 you’ll see, your Honour, the arrangement is there’s a collection at [C] and there’s also a collection at [K]. The [Father] lives at [L] and the [Mother] at the moment lives at … Geelong.
What we say - and it’s in the affidavit, your Honour - there is a change in circumstances there. The applicant has actually referred to it in one of the lines in his affidavit. The change in circumstances are, your Honour, that the expense, the travel expense associated with changeovers is considerable. The father was paying child support. He is a lawyer, your Honour, but his child support has been varied to the point where there's no child support being paid to the mother for the care of the child. His income it seems if you have a look at the annexure to [the Mother]’s affidavit is about $18,000. I’m not sure why he can't be employed as an employee if he's only earning that much self‑employed.
In any event, your Honour, he certainly has an income earning capacity to make some sort of assistance. The [Mother] is a student. She is a student full-time. She lives in Geelong with her parents. The cost associated with these sort of expenses, given that she has to pay for everything in respect of the child, is a significant burden for her. In her affidavit, your Honour, you'll see that she lives with her parents and her parents are intending to move in the near future to [S], which is about 30 minutes from Geelong. What she’s saying is that if the father isn’t paying anything in relation to child support, if his business is going so badly that he would be in a position to be able – he’s got a car and he would be able to be in a position to do the driving which would take an incredible burden off the mother who is in quite difficult financial circumstances.
That arrangement, your Honour, would be - and I might say you'll see in the affidavit that he’s got a business in [C] and I think he’s got an office somewhere else. The time frame from [C] to Geelong is about 50 minutes. My instruction is that the time frame from [S] is about 30 minutes. But what we would be asking for, given that one assumes that he has the time to be able to do it and he’s not making any contributions financially to the child, that he makes one substantial effort in this, and that's the pick-up and collection at [a] Geelong McDonald's as per the respondent's application.
HIS HONOUR: So, in summary, what's the changed circumstances for you to get ---
MR RAMSEY: The changed circumstance is financial circumstances, that the [Father] was making a contribution and he now no longer is making a contribution. The changed circumstances are that the original changeover location in [C] was [Business A]. That, your Honour, has been changed in any event because it wasn't an appropriate circumstance. Paragraph 13 of the mother’s affidavit says:
In relation to the [Business A] changeover, it became apparent that the business -
this is the [food shop] -
closed at 4 pm on weeknights and therefore due to the fact that the changeover was to occur at 6.30 pm every second Friday night, the business was closed and the area was dark and deserted with no open business adjoining the same. This present ---
HIS HONOUR: Was that the situation or the facts that applied at the time of her Honour's orders or was there some change?
MR RAMSEY: No, because it says here that the business was closed. My understanding is that – I’m instructed that the orders stated on Saturday morning. The changeover was 6.30 pm.
HIS HONOUR: The order says changeover at [Business A].
MR RAMSEY: Yes.
HIS HONOUR: At that time when the orders were made did the business close at 4 pm?
MR RAMSEY: Yes, your Honour, because you’ll recall that this is a graded contact arrangement and initially it was in the morning so there was no problem about darkness and so forth. Now we're up to the stage where it’s an evening changeover and the evening changeover didn’t allow for the circumstances that -
The area was dark and deserted with no open business adjoining the same and it presented as a safety issue both to myself and [the child], given the isolated nature of the changeover business.
HIS HONOUR: Which order provides for changeover time?
MR RAMSEY: If you have a look at the first lot of orders in paragraph 7 where we're talking about a 9 o’clock start.
HIS HONOUR: I’m looking at 7.
MR RAMSEY: Seven (a). Then you'll see (b), (c) and now we’re up to (c). As of 1 May it went to the evening on Friday 6.30. And there was no consideration for that change of circumstance. The other change in circumstance, your Honour
HIS HONOUR: Wait a minute. We’ve got 7(c) provided for changeover at 6.30 Friday. At that stage was the [Busniess A at C] closed at that time?
MR RAMSEY: Well, whether or not it was closed at that time, in contemplation - because the pick-up in 2007 was during the daytime or the morning - that the parties may not have put their mind to it. The fact remains that a year or so later when it actually came into reality there was this circumstance that caused concern for the mother with the child in an unlit area. That was the reason why there was this initial problem. She didn’t want to be in that area. She didn’t want to be waiting around by herself with a very young child.
HIS HONOUR: She didn’t realise that at the time of the hearing.
MR RAMSEY: No. It may be that it closed in the process, but in my respectful submission that’s really immaterial. The fact remains is it’s a safety issue.
HIS HONOUR: Yes, but I have to determine what change has been.
MR RAMSEY: Well, you have to determine what change, your Honour, but if there is also another issue, which is a safety issue, that on its own can be considered as a matter for your consideration. The other matter, your Honour, is that my client will be moving to [S] because her parents are relocating. That would mean a significant difference. She goes in her affidavit as to the benefits of moving with her parents which are obvious, the financial benefits. I don't think I have to take you through in detail
HIS HONOUR: Is [S] somewhere between Geelong and [C]?
MR RAMSEY: [S], as I understand, is further out from [L] and [C] and [K]. So it's further. You've got [S], then you’ve got Geelong. Then you’ve got [K], then you've got [C], then you've got [L]. So it’s further out, requires further ---
HIS HONOUR: Further away from [C] than Geelong is.
MR RAMSEY: Yes.
HIS HONOUR: Towards [T] I think, is it?
MR RAMSEY: I think so. My client estimates it’s about a 30-minute drive to where she’s proposing is [a Geelong] McDonald’s. But she’s saying, your Honour, the [Father] ought to pick up the tab, so to speak, on this arrangement, given that he’s making no effort and ---
[The Father]: Excuse me, your Honour. I take absolute offence at that. I have made every effort to comply with the Child Support Agency and there is no allegations that I’ve not complied with that structure. To say I’ve not made effort to support my son is absolutely outrageous and I have to object to it.
HIS HONOUR: Has there been an assessment of child support?
MR RAMSEY: You'll find it in the annexure of [the Mother]’s affidavit, your Honour.
HIS HONOUR: Has that been breached or has that been complied with?
MR RAMSEY: Sorry, has that been breached?
HIS HONOUR: Yes, has that been complied with, the child support assessment?
MR RAMSEY: The change is that he’s paying nothing. Not only that, the little he was paying before, he's been credited because it was an extra payment. So she’s getting not even her $26 a month at the moment. She’s getting nought is the point I’m making, your Honour. The other point I’m making, which I think the applicant doesn’t understand, is that this man is a qualified lawyer and he described himself as a mediator. Now, if he's not - he has a duty to earn an income which will at least make some effort to support his child. The point I’m making is if you can’t earn income running a business himself, perhaps he should be an employee or look towards some other sort of income as a lawyer.
HIS HONOUR: Mr Ramsey, at the start of this case you indicated you were seeking to negotiate or you were prepared to negotiate a changeover and pick‑up point. I don’t think the last few minutes have helped us on the way to getting an agreement.
MR RAMSEY: Can I say, your Honour, this matter has been discussed outside the court. There has not been - my response is no. I don’t think there was any prospect that there would be an agreement. Can I say, your Honour, that’s why I go back to my initial submission to you, and that is, there are some cases where there shouldn’t be any communication, and this is one of them.
HIS HONOUR: The application you make is McDonald’s restaurant, [in Geelong].
MR RAMSEY: Yes, and [the Father] ought to do the driving.
HIS HONOUR: And the [S] part is because it’s further for your client to take the child to
MR RAMSEY: Yes. She will still have to do a 30-minute drive.
HIS HONOUR: Thank you, Mr Ramsey. Yes.
The Father then had the opportunity to reply to what was submitted on behalf of the Mother (Transcript, 7 April 2009, pp 18 to 19):
[The Father]: Your Honour, obviously I’m quite emotional and this is the problem with representing oneself and I apologise to the court for that outburst. However, your Honour, just in summary, as your Honour is aware, the way the Child Support Agency operates is it works off tax returns and therefore you get a situation where your last year’s income determines what you will pay this year. As the mother - and she’s not my [Mother] - is well aware, on Christmas Eve in that relevant financial period my lungs collapsed with a blood clot. It was a massive impact on my capacity to earn and indeed it was attempted to capitalise on cutting out all contact altogether in the matters before her Honour Hughes which was, fortunately for [the child], not successful.
What I have here before me, your Honour, is the most recent child support statement that I have, which indicates that by going into debt on my credit card I actually overpaid [the Mother] - $1612.72. That’s why the current situation – that’s how it’s arisen. However, your Honour, in relation to the affidavit which I’ve only seen this morning, there is a clear misstatement there that I actually initiated this review. In fact the only thing I did was lodge my tax return. It’s an automatic process done by computer which rejigs the whole payment schedule. I was approached by the Child Support Agency to see if I would engage in a process of review. I said no, I did not want to get involved in it because I’d already indicated to the mother that she should have left sleeping dogs lie because it would not go in her favour. She pressed ahead and this is what she brought on herself.
Now, your Honour, I point out that we’re coming up to the end of this taxation year. All these little whimsies about how much my legal practice makes, well, the Child Support Agency will again review the situation and make a decision accordingly. So the situation the mother finds herself in right now is unlikely to continue for much longer. The issue of handover has been always an issue with the mother. It predates Magistrate Hughes. She always wanted me to pick him up at her front door and drop him off at her front door. So it’s an existing point of view and circumstance that were available to her Honour Hughes and argued at length. Your Honour, I seek to tender that statement. It’s probably not appropriate that I just refer to it in passing.
HIS HONOUR: Do you seek to tender it?
[The Father]: Yes, I do, your Honour. (Emphasis added)
The Federal Magistrate then asked the Mother’s lawyer if the Mother had moved to S and the following exchange occurred (Transcript, 7 April 2009, pp 19 to 20):
MR RAMSEY: She hasn’t, your Honour. She’ll be moving to [S] she envisages in the very near future. It’s just a matter of her parents sorting out the rental arrangements.
HIS HONOUR: And she’ll be living with her parents.
MR RAMSEY: The parents have actually signed the contract. So they’re going to be moving shortly.
HIS HONOUR: So her parents are moving to a new house in [S] and your client will be living with them.
MR RAMSEY: My client will be moving with them.
HIS HONOUR: And paying rent? You say rental arrangement. That’s the parents.
MR RAMSEY: The rental arrangement. There’s an independent arrangement from the parents where she can live with the child. A lot of financial benefit there.
There was a very brief exchange between the Federal Magistrate and the Father about the tender of the most recent child support statement. Then, without any notice of what he proposed to do, the Federal Magistrate delivered reasons for judgment. It is not apparent from the transcript what the judgment related to. However, from something the Federal Magistrate later said, I assume that he made an order dismissing the application of the Father (Transcript, 7 April 2009, p 21).
The transcript reveals that there was further discussion about the Mother’s application for variation of an order (Transcript, 7 April 2009, pp 20 to 21). The Federal Magistrate appeared to be inquiring as to whether, on the basis that the Mother resided at S, there was an alternative collection point besides the McDonald’s Restaurant at a Geelong location. The Father said that he knew “nothing about [S]” (Transcript, 7 April 2009, p 20).
I have read what is recorded and, in my view, what was said, particularly by the Federal Magistrate, was unfortunate (Transcript, 7 April 2009, pp 21 to 23). Rather than attempt to summarise the exchange I will set out what was said:
[The Father]: [C] would be fairer in the overall scenario. As I indicated before Magistrate Hughes, the mother is already 50,000 ks in front. By the time [the child] is 18 I will be travelling to Geelong, possibly [S], for school trips, you know, school nights, all those things she'll be even further in front. So I haven't had an opportunity to address your Honour on that point as I've not had an opportunity to address you on the other changes in circumstances in relation to increased contact time. We’ve been expedient here today, your Honour, but I think it's to the disadvantage of [the child].
HIS HONOUR: No, you’ve had a chance to address the court on all issues, but I’ve dismissed your application. (Emphasis added)
[The Father]: I understand, your Honour, but I do not believe that - I raised that there were additional changed circumstances other than the ones already discussed. I have those available to put before you. Your Honour made a decision without hearing them. I’m putting that on the record, your Honour.
HIS HONOUR: I asked you many times what were the changed circumstances. Then I said in summary you’re saying communication is less than it used to be.
[The Father]: Your Honour, that was in relation to whether there were breaches of the orders. We went through the orders and we went no further. I do not wish to alienate the decision-maker, but this has been a really ambushed situation today, your Honour.
HIS HONOUR: I take offence at that. Retract that statement. How has this court ambushed you?
[The Father]: Your Honour, the mother’s representatives have ambushed me.
HIS HONOUR: Retract the statement.
[The Father]: I faxed through my material a month ago and they hand it to me this morning and say, “Let’s go”.
HIS HONOUR: [Mr Peters], retract the statement. You make an allegation this court has been involved in an ambush if you.
[The Father]: No, your Honour, not at all.
HIS HONOUR: Thank you.
[The Father]: I hope I’ve clarified that.
HIS HONOUR: Now, what submissions have I prevented you making to this court?
[The Father]: Your Honour, I believe that your Honour quite rightly exhausted the issue as to whether there were orders breached by her Honour Hughes and as far as the process went, your Honour - but I did indicate there were additional changes in circumstances relevant to increased contact and I don't believe that your Honour has had an opportunity to be heard on that.
HIS HONOUR: I asked you many times what the changed circumstances were and you kept coming back to say communication has deteriorated since the hearing before Hughes FM. That is all you could offer.
[The Father]: Well, your Honour, I have here at least three more points that I was seeking to raise in relation to changed circumstances. Maybe I misunderstood what your Honour said. I just feel that there are changes in circumstances was the reason why I’ve lodged this application in the first place. For whatever reason, I think it indicates that this case may - perhaps shouldn’t have gone ahead today, given all the procedural issues that were at the start. However, I do have to point out as [the child]’s father there are changed circumstances that your Honour hasn’t heard.
HIS HONOUR: Well, you had every opportunity to put those to this court and I’m totally satisfied
[The Father]: I understand, your Honour. Your Honour has made the point a number of times and I must accept what your Honour is saying.
HIS HONOUR: Yes. Very well. So you’re not able to nominate an alternative spot to McDonald’s [in Geelong] for the changeover, because I do accept that there is a change in relation to [Business A]. I asked you a question.
[The Father]: Sorry, your Honour. I’m really gobsmacked. I’m sorry, I’m having real trouble coping.
HIS HONOUR: Are you able to nominate an alternative place for changeover or pick-ups to occur?
[The Father]: Your Honour, the mother’s changed within the [C] township twice. I think the most suitable contact handover point was the [Business E], which stays open till late at night. I’m not sure if your Honour is still open to [C] being the changeover point. The other drop-off point was [K]. I drop him back at [K] on the Sunday. We haven’t discussed [K] at all I believe. That again is a cafe style situation where there’s plenty of people around and indeed I suggested it for that reason. They’re the only two townships.
HIS HONOUR: Would that be more convenient to you than [Geelong]?
[The Father]: I don’t like McDonald’s, your Honour. I don’t like the dietary issues there. Living in [L] perhaps I have exposure to other options that the mother doesn’t have. But I’d prefer him to have more wholesome meals frankly.
HIS HONOUR: I’m not looking at the issue of what’s eaten there, I’m just looking for the most convenient place to change.
[The Father]: Well, he eats at McDonald's a fair bit I understand.
HIS HONOUR: The court makes no comment about McDonald’s food. I am satisfied that there is a change which warrants changing order 18, that the mother shall deliver the child to his father at [Business A] at the commencement of time. I am striving to find a more satisfactory point to you than [Geelong]. You don’t seem to want to nominate a point.
[The Father]: Your Honour, I believe the only options that I see are [C] and [K] because there’s nothing in between and it’s totally inappropriate to have handover in the bush.
HIS HONOUR: Is [K] a town between [C] and [Geelong]? Is that in a direct line more or less?
[The Father]: Yes, your Honour, it’s on the [L to Geelong] Road. Both [C] and [K] are on the [L to Geelong] Road.
HIS HONOUR: At [K] there’s a milk-bar or cafe is there?
[The Father]: Yes, it’s like I guess the old roadhouse situation. It’s a bit more than a cafe, but it’s certainly always open.
HIS HONOUR: It’s well lit up?
[The Father]: Yes, indeed, your Honour, and it has a - being a cafe, I take [the child] inside and I sit in a non-provocative way so that [the child] sees his mother and is able to run to her without any eye contact at all, which the mother seeks.
I observe that during this exchange the Federal Magistrate made clear that he had already delivered a judgment dismissing the application of the Father.
As well, during this exchange the Federal Magistrate made a finding that he was satisfied that there was a change that warranted a variation of Order 18 of the 2007 final orders (Transcript, 7 April 2009, p 23). This was in circumstances where it is clear that the Federal Magistrate had not read any of the material. At the commencement of the hearing the following exchange occurred (Transcript, 7 April 2009, p 2):
HIS HONOUR: Mr Ramsey, is it going to be necessary for me to stand this matter down while I read the affidavit material or will you take me through it?
MR RAMSEY: No, your Honour, I don't think so. I can certainly take you through it. It's going to be faster that way.
HIS HONOUR: Thank you. [Mr Peters], this is your application.
[The Father]: Yes, it is, your Honour.
There was then further discussion by the Federal Magistrate with both the Father and counsel for the Mother. I observe that during this discussion the following exchange occurred (Transcript, 7 April 2009, pp 24 to 25):
HIS HONOUR: There’s no orders restricting where the mother can live, are there? And the courts are hesitant to place orders restricting where a parent can live.
[The Father]: I understand, your Honour. Even though I oppose it in spirit, I understand there’s no legal argument I can raise. Certainly I was not consulted on anything. But, your Honour, I just request that the ---
HIS HONOUR: By saying that you’re alleging there’s an obligation to consult you about where the mother lives.
[The Father]: Under the shared parental responsibilities act, I think it’s fairly clear, your Honour, that the mother does have a statutory obligation to consult with me on many things that she doesn’t do.
HIS HONOUR: Including, you say, where she lives.
[The Father]: Where my son lives and kindergarten, all the major - all the decision-making in his life I’ve had no input into any of it, despite constantly requesting opportunities to do so. They appear throughout the communications book which is not with us any more. Your Honour, a small matter perhaps for the court but a really important one for my partner and I is that [the Mother] and I were never married and the term “husband and wife” has been used. I raised it earlier. I ask that the record be clear on that point. It’s father and mother and nothing else.
HIS HONOUR: Yes, I apologise if I’ve slipped into error.
[The Father]: Thank you, your Honour. It just upset my partner, that’s all when the documents come.
The transcript reveals that the Federal Magistrate then made an order (Transcript, 7 April 2009, p 26). I assume that this was the order sought by the Mother because the Federal Magistrate then said: “Are there any other applications before the court in this matter” and counsel for the Mother made an application for costs.
The Federal Magistrate then sought submissions from the Father in relation to costs and the Father said that there were “additional orders” he was seeking. (Transcript, 7 April 2009, p 26). This is confusing because on one view the Federal Magistrate had already dismissed the Father’s application and granted the Mother’s application. In any event, the Federal Magistrate said “[w]e’ll leave the issue of costs aside at the moment” and then heard further submissions from the Father (Transcript, 7 April 2009, pp 26 to 27).
The first matter the Father raised related to a change of name of the child. At 11.57am the Federal Magistrate made an order (Transcript, 7 April 2009, p 28).
The second matter the Father raised related to the communications book (Transcript, 7 April 2009, p 28). At 12:03pm the Federal Magistrate delivered what is indentified in the transcript as a judgment (Transcript, 7 April 2009, p 30).
The third matter the Father raised related to the child spending time with the paternal grandparents (Transcript, 7 April 2009, p 31). At 12:08pm the Federal Magistrate delivered what is indentified in the transcript as a judgment (Transcript, 7 April 2009, p 32).
The Federal Magistrate concluded: “Each of the individual applications were dismissed. I could make an order that all extant applications be dismissed”. However, the transcript suggests that such an order was not made on 7 April 2009.
Subsequent to 7 April 2009 an order was produced by the Federal Magistrate that provided:
(1) The Order 18 of the Orders made by Federal Magistrate Hughes on 9 July 2007 is varied so that “[Business A]” is replaced with “[K] General Store”.
(2) There is no evidence in support of a name change for the child … and that application is dismissed.
(3) As to order 19 of the Orders made by Federal Magistrate Hughes on 9 July 2007 relates to the communication book, the Court does not find a new circumstance for the variation of Order 19. That application is dismissed.
(4) In relation to the paternal contact issue, the Court finds no evidence or new circumstance to support a variation of the orders of made by Federal Magistrate Hughes on 9 July 2007 and that application is dismissed.
(5) The application for costs is dismissed.
(6) Otherwise all extant applications are dismissed.
(7) Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.
Subsequent to 7 April 2009 a document entitled reasons for judgment was produced that included the heading “Ex tempore and revised from transcript”. The following was in the document:
1. The Court is not satisfied that there has been a changed or new circumstance that warrants the variation of the orders of Federal Magistrate Hughes made on 9 July 2007 as sought by the father. The father’s application to vary those orders and for new orders is dismissed. The mother seeks a variation to order 18 of the orders of Federal Magistrate Hughes made on 9 July 2007 which requires the mother to deliver the child to the father at [Business A]. The Court finds that a circumstance exists that the parties were not alert to at the time of the orders of Federal Magistrate Hughes, being that [Business A] closes at 4.00 pm.
2. The changeover time has progressed in the orders from 9 am in order 7(a), 9 am in order 7(b) and 6.30 pm in order 7(c). The Court has been advised that at 6.30 pm the area around [Business A] is unlit and the mother feels unsafe in that area. The mother also intends moving her residence to [S] which would require driving a further distance to [Business A] than was contemplated at the time of the orders of Federal Magistrate Hughes. The Court therefore finds changed circumstances or a new circumstance that warrants variation of order 18 of the orders of Federal Magistrate Hughes.
3. The Court orders that as there is no evidence in support of a name change for the child, that application is dismissed.
4. The Court does not find changed or new circumstances which warrant a variation of order 19 of the orders made by Federal Magistrate Hughes on 9 July 2007. That application is dismissed.
5. The Court finds no evidence of changed circumstances to support a variation to the orders of Federal Magistrate Hughes made on 9 July 2007 in relation to the father's time with [the child] to enable time to be spent with the paternal grandmother and other paternal relatives. That application is dismissed.
6. In relation to the application for costs, the father has not been entirely unsuccessful in that the pick-up point is now [K]. The application for costs is dismissed.
I observe that what the Federal Magistrate said about why the Mother was seeking to change the changeover location, namely, because “the area around [Business A] is unlit and the mother feels unsafe in that area”, was incorrect. The Federal Magistrate may have had in mind what was submitted by counsel for the Mother about a “safety issue” (Transcript, 7 April 2009, pp 16 to 17).
In any event, in his submissions counsel for the Mother relied upon three matters. First, the financial circumstances of the parties (Transcript, 7 April 2009, p 14). Second, because Business A is closed at 6.30 pm which the Federal Magistrate identified as the “safety issue”. (Transcript, 7 April 2009, pp 15 to 17). Third, because the Mother was moving to S (Transcript, 7 April 2009, p 17).
In her affidavit of 6 April 2009 the Mother gave evidence at paragraph 13 that the “initial changeover location” was Business A and that it became apparent that the business closed at 4.00 pm on weeknights and therefore due to the fact that when the changeover was to occur at 6.30 pm every second Friday night, the business was closed and the area was dark and deserted with no open business adjoining same. The Mother deposed that she then ascertained that a business referred to as the “[Business B]” was open approximately 50 metres from the Business A and that it has a small playground that the child has been able to use at every changeover since October 2008 while the Mother and the child await the arrival of the Father. The Mother said that the Father had no difficulty collecting the child from Business B which was 50 metres from the original handover location. In summary, the Mother agreed that the parties had changed the changeover location. This was confirmed by her counsel who told the Federal Magistrate that the handover at the Business A had changed (Transcript, 7 April 2009, p 15). In summary, what the Federal Magistrate said was clearly wrong as the parties had not used since October 2008 Business A as a changeover point.
The Mother gave no evidence suggesting that there were any difficulties with respect to the changeover location at the “[Business B]”. My impression, from reading the Mother’s evidence, is that the reason why she sought that the changeover location be altered was because of her financial circumstances. What the Mother said in her affidavit was that she did not consider that C remained “a central distance point for handover” given that she may be residing at S. She went on to say that: “[C] is now in fact the work location for the [Father] and no longer represents a fair and equal travel distance for both parties”.
On 5 May 2009 the Father filed a notice of appeal. On 15 July 2009 I made the following directions:
1. On or before 4:00 pm on Friday 31 July 2009 the Appellant file and serve an amended Notice of Appeal.
2. On or before 4.00 pm on Friday 31 July 2009 the Appellant file and serve a list of the documents that were before the Federal Magistrate upon which the Appellant seeks to rely.
3. On or before 4.00 pm on Friday 31 July 2009 the Appellant obtain those parts of the transcript of evidence of the hearing before the Federal Magistrate which may be relevant to the appeal and provide copies of such transcript to the Court and to the Respondent.
4. On or before 4.00 pm on Friday 31 July 2009 the Appellant file and serve a written summary of argument and list of authorities (if any).
5. On or before 4.00 pm on Friday 31 July 2009 the Appellant file and serve any application to lead further evidence and any material in support thereof.
6. On or before 4.00 pm on Friday 14 August 2009 the Respondent file and serve a list of any further documents that were before the Federal Magistrate, not included in the Appellant’s list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any).
7. On or before 4.00 pm on Friday 14 August 2009 the Respondent file and serve any application to lead further evidence and any material in support.
8. The appeal be listed before me for hearing at 2:15 pm on Wednesday 26 August 2009.
9. The costs of today’s proceedings be reserved.
On 31 July 2009 the Father complied with the above orders. The Father also filed an application in an appeal in which he sought the following orders:
1. That the communication book be copied filed and served on the Respondent.
2. That the communication book be admitted as evidence.
3. That the Respondent provide the Applicant in writing the street address and number of her residence in [Geelong].
4. That the Respondent provide the Applicant in writing the street address and number of her proposed residence in [S].
5. That the Respondent provide the Applicant with the date of moving or the proposed date of moving to the [S] Address.
In support of his application in an appeal the Father filed an affidavit sworn 30 July 2009.
On 14 August 2009 the Mother complied with the directions I made on 15 July 2009. She also filed a Response to the application of the Father application in an appeal. She sought the following orders:
1. That the applicant make full and frank disclosure as to his business conducted at [C] and [L] under the name “[Mr Peters Legal]” including details of his office in [C].
2. That the applicant make full and frank disclosure as to the income tax returns for the last financial year ending 30 June 2008 and, if completed, 30 June, 2009 (which returns are to include full details of claimed expenses).
3. That the parties attend at Court for the hearing of the application in an Appeal filed 31/7/09 and that the matter not otherwise be heard in the absence of the parties.
4. That the respondent have leave to adduce further evidence as to:
4.1the proposed relocation of the mother and child to [S];
4.2the current studies of the mother in support of her long term desire to improve the financial stability of the mother and Child Support Agency
4.3the cost of transport of the child in compliance with the Orders of Hughes FM dated 9/7/07.
In support of her response to an application in an appeal the Mother filed an affidavit sworn 13 August 2009.
On 26 August 2009 the matter came before me for the hearing of the appeal.
Grounds Of Appeal
In the Father’s amended notice of appeal filed on 31 July 2009 he lists the following Grounds of Appeal:
1. The Magistrate allowed the respondent Mother to file all her documentation unsealed and unserved at the start of the hearing and proceeded to hear the cross application and application without reading the documents and without giving the self represented Applicant father an opportunity to read the Response
Grounds of Appeal insufficient time to respond to documentation.
2. failure [sic] to focus on the best interest of the child and adjourn to allow response to new circumstances revealed at hearing
3. Trial by surprise due to proceedings to final hearing on all matters at first mention with response documents only being filed at the start of the one morning hearing [sic] without any breaks at all.
4. trial [sic] by surprise with Mother withholding [sic] changed circumstances in breach of orders to communicate.
1 Ground – Lack of Procedural Fairness
1.1Failure to allow Applicant time to read Mothers’ [sic] Response and cross application served at the start of the hearing.
1.2Failure to adjourn and read the Mothers’ [sic] response.
1.3Failure to provide an opportunity to cross examine the Respondent and cross Applicant.
1.4Failure to adjourn to another hearing date to allow the father cross respondent reasonable time to file and serve a response and supporting affidavit to the cross application.
1.5Accepting evidence from the Bar table from the mothers counsel whilst denying the self representing party the opportunity to do the same.
2 Ground – Errors of Fact Amounting to Errors of Law
2.1No evidence as to childs [sic] and mothers [sic] actual residential street address or proposed street address.
2.2Orders relating to Change in travel made immediate when the date of proposed change of residence unknown.
2.3The Mother is a qualified [professional] with an Arts degree in Justice studies and had wilfully reduced her own income.
2.4Dislosure [sic] of front page child support agency letter to the parents showing a nil payment and non disclosure of page 2 which notes the reason as a large overpayment by the father.
3. Ground – Trial by Surprise
4. Ground – Failure to consider Shared Parental Responsibilities Act
I received written submissions from both the Father and the Mother.
Discussion
Rule 4.01(1) of the Federal Magistrates Court Rules 2001 (“the Rules”) provides that a proceeding must be started by filing an application. Rule 4.02 provides that an application must precisely and briefly state the orders sought. Rule 4.01(2) provides that an application for final orders may include an application for interim or procedural orders. Rule 4.03(1) provides that a respondent to an application may file a response. Rule 4.05(1) provides that a person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on. I observe that r 4.02 of the Family Law Rules 2004 provides that a party must not file an affidavit with an initiating application unless permitted or required to do so by Chapter 4 or r 2.02.
On 3 March 2009 the Father filed an application seeking parenting orders supported by an affidavit. On 7 April 2009 the Mother filed a response supported by an affidavit she swore on 6 April 2009.
Rule 6.19 of the Rules provides that unless the court orders otherwise an application and any document filed with it may not be served less than three days before the day fixed for the hearing of an application in a case or less than seven days before the day fixed for the hearing of any other application. Rule 4.03 provides that a response must be filed and served within 14 days of service of the application to which it relates. I also observe that r 4.07 provides for filing a reply to a response.
There was no complaint by the Mother that the application of the Father and his supporting affidavit were not served on the Mother within a reasonable time after the documents were filed. The Mother, however, did not comply with r 4.03 of the Rules. The response and supporting affidavit of the Mother were filed in court on 7 April 2009 after the hearing commenced. The Father only received a copy of the documents shortly before the hearing commenced.
Consequently, the Mother’s case was undisclosed to the Father prior to the commencement of the hearing. Further, at no stage did the Federal Magistrate leave the bench after receiving the Mother’s response and affidavit. The Father was denied an opportunity to consider the Mother’s affidavit and file a response to her application.
Rule 10.01(1) of the Rules provides that at the first court date, the court or a registrar is to give orders or directions for the conduct of the proceeding. Rule 10.01(2) provides that without limiting r 10.01(1) the court may hear and determine all or part of the proceedings.
Although the Father is a lawyer, given that he appeared without legal representation the Federal Magistrate had certain responsibilities in relation to how the hearing was conducted. The Federal Magistrate should have adopted the guidelines prescribed in Johnson and Johnson (1997) FLC 92-764; Re F: Litigants in person guidelines (2001) FLC 93-072 and S v R (1999) FLC 92-834. The Federal Magistrate should therefore have at least informed the Father of the manner in which the hearing was to proceed; what was the nature of the proceeding the Federal Magistrate was conducting; attempted to clarify the substance of the submissions of the Father and drawn attention to the law to be applied in determining the issues.
I observe that there was no discussion by the Federal Magistrate as to what he may do on the first court date in the sense of considering the options outlined in Rule 10.01 of the Rules.
At the commencement of the hearing counsel for the Mother made an application for dismissal of the application of the Father.
Section 17A of the Federal Magistrates Act1999 (Cth) provides:
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates.
Rule 13.10 of the Rules reflects s 17A of the Federal Magistrates Act and provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the court
I observe that r 13.07 provides for disposal of a proceeding by summary judgment.
In Jacobs & Vale (2008) FMCAfam 641 (unreported, Jarrett FM, 1 July 2008) the Federal Magistrate discussed the nature of the power conferred by s17A of the Federal Magistrates Act and adopted what was said by Driver FM in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 (unreported, Driver FM, 19 March 2007) namely:
· In assessing whether there are reasonable prospects of success on an application or a response, the Court must be cautious not to do an injustice by summary judgment or summary dismissal.
· There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment or summary dismissal is sought to succeed at the final hearing.
· Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
· Unless only one conclusion can be said to be reasonable, the discretion under s.17A cannot be enlivened.
· The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant.
Although during the hearing before the Federal Magistrate it was not articulated by counsel for the Mother that the Mother was seeking summary dismissal of the application of the Father it is clear that this is what was being sought. This was confirmed during the hearing before me and also in the written summary of argument of the Mother in which it is said that: “The Court in determining the mother’s Response seeking dismissal of the Appellant’s Application conducted a hearing by submissions as provided for under s. 17A of the Federal Magistrate’s Court Act and s. 97(3) of the Family Law Act 1975”. No notice was given to the Father or the Court of intention to make this application. There was no discussion of the type contemplated by Division 10.1 of the Rules.
At no time did the Federal Magistrate inform the Father that the Federal Magistrate was being asked to consider an application for summary dismissal. The Federal Magistrate made no reference to s 17A of the Federal Magistrates Act or r 13.10 of the Rules or the relevant principles he would apply in dealing with the application. In my opinion, he should have done so. The Federal Magistrate should have at least advised the Father of the nature of the proceedings before him, why he proposed to proceed with the hearing rather than adjourn the proceedings and the procedure he proposed to adopt in dealing with the application of the Mother.
On behalf of the Mother it was submitted that the Federal Magistrate determined the application of the Mother having regard to the discrete issue in dispute in accordance with the power to determine such matters summarily and expeditiously.
I observe that s 42 of the Federal Magistrates Act provides that: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted”. I observe that in the written submissions of the Mother reference is made to s 97(3) of the Act which provides that: “In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted”.
Section 97(3) of the Act was considered by the High Court in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 and in joint reasons Barwick CJ, Gibbs, Stephen and Mason JJ said at 257-258:
Proceedings in which a [Mother] seeks an order for maintenance or the settlement of property may involve a dispute as to property of great value and will often be bitterly contested on both sides. The order made determining such proceedings may be of the utmost importance to the future of both parties. The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down (in such sections as ss. 43, 72, 75 and 79, whichever may be applicable). He must also follow the procedure provided by the law. The provisions of s. 97(3) of the Act, which require him to proceed without undue formality, do not authorize him to convert proceedings between parties into an inquiry which he conducts as he chooses. The provisions of reg. 108(2), which enable the court “with the consent of the parties to the proceedings” to dispense with such procedures and formalities as it thinks fit, show that without such consent the Court has no such dispensing power. A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially.
In my view, what the High Court said in The Queen v Watson; Ex parte Armstrong remains apposite to proceedings in the Federal Magistrates Court.
The Father was seeking that a number of the orders made on 9 July 2007 be discharged. He also sought orders that would enable him to spend more time with the child than was provided for in the July 2007 orders; orders that would enable members of the paternal family to spend time with the child; orders in relation to the “communication book” that was provided for in orders 19 and 20 of the July 2007 orders; orders in relation to the name of the child; orders in relation to telephone contact; mail, interstate travel, a passport, overseas travel and orders as to the effect of any illness of the child. The Mother sought an order for a change of the place at which the child was delivered by one parent to the other and this required a variation of order 18 of 9 July 2007.
Thus, both parents were seeking a variation of the regime established by the orders of 9 July 2007. It was therefore necessary for both parties to demonstrate that there had been a change in circumstances since the original orders: Rice v Asplund (1979) FLC 90-725.
Without having read any material, and only hearing oral submissions, the Federal Magistrate determined that the Father was unable to establish a change in circumstances but the Mother had and thus the Federal Magistrate dismissed the application of the Father and granted the relief sought by the Mother.
I observe that at the time of the orders of July 2007 the child was two years of age and at the time of the hearing in April 2009 the child was almost four years of age. The Father was seeking to spend more time with the child.
In relation to the application of the Mother for parenting orders, again the Federal Magistrate should have explained to the Father the nature of the proceedings, why he proposed to proceed with the hearing rather than adjourn the proceedings and the procedure he proposed to adopt in dealing with the application.
At no time did the Federal Magistrate inquire of the Father if he would seek the opportunity to put further material before the court in response to the application for summary dismissal or the application of the Mother for parenting orders. At no time did the Federal Magistrate inquire of the Father if he wanted to give oral evidence in reply to the contentions of the Mother and/or cross-examine the Mother. I observe that r 15.29A of the Rules provides that the Court may dispense with the attendance for cross-examination of the person making an affidavit or direct that an affidavit be used without the person making the affidavit being cross-examined on it. This provision was not mentioned by the Federal Magistrate.
I have already observed that on 9 July 2007 an order was made that the parents have equal shared parental responsibility of the child. Section s 65DAC of the Act deals with the effect of a parenting order that provides for shared parental responsibility and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. Section 65DAC(3) provides that the order is taken to require that each of the persons consult the other in relation to the decision to be made about an issue and make a genuine effort to come to a joint decision about the issue. In other words the parents are under a legal obligation to consult, and to make joint decisions about major long term issues: See Butterworths, Australian Family Law, Vol 1 at [s 61DA.10].
The term “major long term issues” is defined in s 4 of the Act to mean “issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about” the child’s education, religious and cultural upbringing, health, name and “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”. However, s 65DAE provides that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
Although the Father did not seek a discharge of order 2 made on 9 July 2007, which provided that the parents have equal shared parental responsibility of the child, consideration of the transcript reveals that the Father complained that there was no communication between the parties, the Mother had not provided the communication book, and the Father did not know where the child lived or where the child would go to school. Further, that the Mother was proposing to change the residence of the child but would not disclose to the Father where the child would live. In those circumstances, the Father was complaining about the effect of the order for shared parental responsibility. Without expressing any view about the outcome of an inquiry into the complaints of the Father there was evidence that demonstrated that there may have been a significant change in circumstances.
I observe that in the written submission of the Mother it is contended that the Father failed to identify clearly and concisely any issues relating to such change of circumstance other than to rely upon a lack of communication between the parents and that: “Such circumstance existed at the time of the determination of the Application by Federal Magistrate Hughes on the 9th July, 2007”. The Father does not know where the child lives and the Mother was seeking to move the residence of the child to somewhere in the area of S. The Mother obviously knows where the child will reside because she gave evidence that her parents had already purchased a property. As I have already observed, there may be significant issues in relation to the order for joint parental responsibility. For example, the Mother is under a legal obligation to consult with the Father, and to make with the Father a joint decision about the education of the child. This is in circumstances that the Father contended that he does not know where the child attends kindergarten.
Further, I do not accept that given the Mother contended that there had been a significant change in circumstances such that the order relating to delivery of the child from the care of one parent to the other should be varied, this issue could be considered in isolation from the issues raised by the Father. One of the reasons why the Mother sought a change was because of her proposal to change the residence of the child. Further, the order of the Federal Magistrate changed an arrangement that had been in place for almost two years.
In any event, the Father was also seeking other orders which, on one view, the Federal Magistrate appeared to accept did not require consideration of the approach outlined in Rice v Asplund. This is because the Federal Magistrate had already dismissed the application of the Father before he heard submissions from the Father in relation to these other orders. In my view, the manner in which the hearing was conducted appears to have deteriorated and it is not entirely clear what was happening. As I have observed, the Federal Magistrate gave judgement in relation to the Mother’s summary dismissal application but then proceeded to hear submissions from the Father in relation to his application for orders in relation to the change of name of the child, the communications book and the child spending time with the paternal grandparents. The Federal Magistrate then appears to have given separate judgments in relation to these applications. The situation is not made clearer by the subsequent published reasons for judgment in which it is suggested that in dealing with the three topics identified above the Federal Magistrate applied Rice v Asplund.
I do not know what reasons the Federal Magistrate gave on 7 July 2009 when he dismissed the application of the Father. The ultimate reasons, which in my view were inadequate, appear to be a compilation of what the Federal Magistrate may have said at various stages of the hearing.
On behalf of the Mother brief submissions were made in relation to s 69ZN(4) and also s 69ZN(7) of the Act. Section 69ZN(4) provides that a principle for conducting child related proceedings is that the Court is to actively direct, control and manage the conduct of the proceedings. Section 69ZN(7) provides that a further principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
Submissions were also made in relation to a decision of Boland J in Sheen & Paulo (2007) FamCA 1175 (unreported, Boland J, 28 September 2007) in which her Honour said:
53. As I have already noted, both parties in this matter were unrepresented before his Honour. The Full Court in Re F Litigants in Person (2001) FLC-93-072 set out “guidelines” to be applied by Judges of the Family Court in hearing cases where one or both parties are unrepresented. The guidelines which are set out at paragraph 253 of that judgment, whilst stressing the need for procedural fairness, are primarily directed to a contested trial in the Family Court.
54. It is important to take into account the matters set out in paragraph 253 are guidelines and not binding principles of law. Further the guidelines must now be considered in the light of the introduction of Div 12A into the Act. What does remain relevant to this appeal is the comment by the Full Court at paragraph 230 that an alleged breach of the guidelines should not be used as a ground of appeal.
55. The changes implemented by Div 12A, which was introduced into the Act from 1 July 2007, particularly s 69ZN (3) (4) (5) (6) and (7) are relevant to consideration of the mother’s complaint of lack of procedural fairness. Those
…
64. There is no doubt undue questioning by a trial Judge in an adversarial trial may constitute appealable error (see Jones v National Coal Board (1957) 2 QB 55 at 63-66; (1957) 2 All ER 155 at 159-161). It seems to me that the principles therein established must now be read in the light of the legislative changes introduced by Div 12A of the Act. It is also relevant to have regard to the fact in this case it was the first occasion the matter was listed before the Court.
In my view, these provisions were not relevant to what happened on 7 July 2009 except perhaps to the cross application of the Mother.
It is, however, relevant to consider what the High Court per Mason, Wilson, Brennan, Deane and Dawson JJ said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board, in these terms:
“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. (footnotes omitted)
Grounds 1 and 3
I will deal with grounds 1 and 3 together. In ground 1 the Father complains of a lack of procedural fairness. In ground 3 the Father complains of “Trial by surprise”. I am not going to repeat all of the submissions in support of these grounds. The submissions of both parties are to some extent discursive and repetitive.
The Father complains that the Federal Magistrate failed to allow the Father time to read the Mother’s response and cross application served at the start of the hearing; failed to adjourn and read the Mother’s response and affidavit; failed to provide an opportunity to cross-examine the Mother; failed to adjourn to another hearing date to allow the Father a reasonable time to file and serve a response and supporting affidavit to the cross application of the Mother; and accepted evidence from the bar table from the Mother’s counsel whilst denying the Father the opportunity to do the same.
The Father contended that service of the Mother’s response and affidavit at the commencement of the hearing on 7 April 2009 meant that the Father was taken by surprise and had no knowledge of the Mother’s allegations of fact prior to the hearing. The Father contended that he struggled to deal with this surprise throughout the hearing and protested at being “ambushed” by counsel for the Mother. The Federal Magistrate directed the Father to withdraw the allegation of ambush. In response to the Father’s objection to trial by surprise the Federal Magistrate did not adjourn to enable the Father to have time to prepare a response. The Father submitted that the transcript clearly reveals that he was at a major disadvantage in attempting to respond to documentation that he had not been given an opportunity to read and prepare a response to.
On behalf of the Mother a number of submissions were made. It was submitted that the Federal Magistrate provided the opportunity for the Father to seek an adjournment which opportunity the Father elected not to adopt. To support this submission reference was made to the discussion which I have set out above (Transcript, 7 April 2009, p 12). When what the Federal Magistrate said is considered in context, and taking into account the failure of the Federal Magistrate to explain to the Father that he could seek an adjournment and why, I do not accept that the Federal Magistrate provided the opportunity for the Father to seek an adjournment.
On behalf of the Mother it was submitted that the Father “consented to ... have the mother’s cross application heard immediately”. It was submitted that the Father conceded that “because the contest was about travel it was well canvassed and we could proceed”. Again, the whole of what was said at the hearing has to be considered and overall I do not accept that the Father consented to have the Mother's cross application heard immediately. No explanation was ever given by the Federal Magistrate to the Father that his Honour proposed to proceed and hear and determine the Mother’s application without giving the Father any opportunity to prepare, any opportunity to adduce evidence in reply and any opportunity to cross-examine the Mother.
On behalf of the Mother it was submitted that the Father was not truly “surprised” by the response filed. It was submitted that the issue of travel encompassed only three paragraphs of the Mother’s affidavit, namely, paragraphs 13, 14 and 15. I would have thought paragraph 9 was also relevant given what was submitted on behalf of the Mother as to why her application for a variation of the orders should be made. In any event, as I have already observed, this evidence of the Mother was not referred to in the oral submissions of counsel for the Mother to the Federal Magistrate and this is an example of why it is unfortunate that the Federal Magistrate did not read the material. As I have observed, what the Federal Magistrate said in his published reasons was wrong.
On behalf of the Mother it was submitted that the Federal Magistrate provided the Father significant opportunity to provide oral evidence as to issues of travel throughout the course of the proceedings and invited the Father to make ongoing submissions in relation to same. I do not accept this submission. I have set out what was said during the discussion recorded on pages 20 to 27 of the transcript.
On behalf of the Mother it was submitted that the Father is a practising lawyer and mediator and he elected to proceed with the hearing and sought no adjournment to provide further information to the Court. It was submitted that the Father did not indicate that he was unable to deal with the matters but in contrast addressed the issues appropriately through oral submissions with the Federal Magistrate. I do not accept these submissions. I have already made an observation about what happened after the Federal Magistrate supposedly dismissed the application of the Father.
In conclusion, I am of the view that the complaints of the Father in grounds 1 and 3 are meritorious and that he was denied procedural fairness. For this reason alone I propose to allow the appeal.
Ground 2
In ground 2 the Father contends that there were errors of fact in that:
· There was no evidence as to actual residential street address or proposed street address of the Mother and the child.
· The orders relating to change in travel were made to come into immediate effect when the date of the proposed change of residence was unknown.
· The Mother is a qualified professional with an arts degree in justice studies and she wilfully reduced her income.
· Disclosure of the front page of a child support agency letter to the parents revealed a nil payment and non disclosure of page 2 which noted the reason as a large overpayment by the Father.
As to the first matter, the Father contended that there was no evidence as to the actual residential street address or proposed street address of the child and the Mother. The Father submitted that the only geographical location put before the Federal Magistrate for the current address of the Mother was Geelong which is a large urban area. Further, that the only geographical location for the proposed future address of the Mother was S which is a large rural shire.
The Father submitted that the transcript discloses that the Federal Magistrate pressed the Father, without notice, to give estimates of distance travelled between these locations. The Father stated he was struggling to respond due to surprise and the large areas in evidence.
The Father submitted that the transcript also discloses that counsel for the Mother gave evidence from the bar table, with no opportunity for cross-examination, that it was necessary to travel through Geelong to get to K and L from S which is an incorrect statement. The Father submitted that the transcript discloses that the Federal Magistrate only had before him incorrect statements of fact and no evidence of the specific street addresses of the Mother both actual and. proposed. It was submitted that calculating a fair travel distance based on the extremely broad references to Geelong and S is so vague as to amount to a mistake of fact sufficient to establish grounds for are rehearing.
On behalf of the Mother it was submitted that she stated through her counsel that she had not relocated to S but envisaged relocating to S in the near future. It was submitted that the Mother did not seek additional allowances for travel due to the size of the region. It was submitted that it was appropriate to rely upon a central area of the S town as being the area from which the Mother would be required to transport the child. The Mother did not seek additional allowances for any other travel within either region should she live outside the main urban area. The Mother submitted through her counsel that she would travel from S to Geelong and C via M. It was submitted that there was no disadvantage to the Father by adopting the central urban area of each region.
It was also submitted on behalf of the Mother that the Father gave evidence that he had “travelled this route” quite often (in reference to K and C) and described the area stating “it’s actually forest with no settlement or township that is appropriate”. It was submitted that the Father gave clear evidence as to the distance required to be travelled in terms of time taken based on his clear indication of past experience.
It was submitted on behalf of the Mother that she stated that there is no significant detriment or injustice to the Father in not providing a specific street address of the Mother both actual and proposed. It was submitted that contact changeover was determined having regard to the general location of the parties and not on a specific calculation of mileage travelled. The Mother has continued to reside in the Geelong region since the birth of the child and predating the orders of 9 July 2007.
I am obviously not in a position to determine these controversies. However, what it demonstrates is that for a reason never explained, the Federal Magistrate, without notice or explanation, resolved to hear the Mother’s application for parenting orders on the basis of only hearing submissions and not taking any evidence and giving to all parties the opportunity to test the evidence. Further, the submissions of the Mother confirm that she was not prepared to reveal to the Father where the child is living and may live in the event that the Mother were to move from Geelong. The complaints of the Father have merit. However, the complaints are more directed to the issue of procedural fairness.
As to the second matter, the Father submitted that the orders were of immediate effect when the evidence was that the Mother had not yet moved and was merely proposing to do so at some time in the future. The appropriate time for the order to take effect was when the Mother had provided proof that the move had actually taken place.
On behalf of the Mother it was submitted that the Mother stated and it was known to the Federal Magistrate that the proposed relocation from Geelong to S had not occurred and was due to occur in mid-2009. It was submitted that the order made by the Federal Magistrate arises from the exercise of discretion as to the implementation of orders and not as a result of any mistake of fact. In my view, if this is so then the error of the Federal Magistrate was in failing to make an order that the variation come into effect if and when the Mother moved to S and without explanation making an order that the variation immediately come into effect.
As to the third matter, the Father submitted that the Mother is a qualified professional with an Arts degree in justice studies and had reduced her income without consultation with the Father or the Child Support Agency before resigning. It was submitted that the Mother’s voluntary reduction in her income without consultation was not a change in circumstance for increasing the burden on the Father to facilitate access visits.
The Father submitted that the lowering of his income on medical grounds was well known to the Mother as his medical records confirming this were before Federal Magistrate Hughes at the first hearing on 9 July 2007.
The Father submitted that there was no evidence before the Federal Magistrate on 7 April 2009 explaining why the Mother had increased the financial stress of the parents by resigning her permanent employment as a professional. There was no evidence of the dates of the Mother’s cessation of employment as a professional and commencement of study. There also was no evidence explaining why the Mother could not defer her studies to become a nursing aide until the Father’s involuntary lowering of income on medical grounds was improved
The Father submitted that the transcript records that there had been no communication between the parents because the Mother believed this was appropriate. It was submitted that this proves that the Father had not been consulted by the Mother in her decision to increase financial stress nor the timing of it. It was submitted that the Mother’s unilateral voluntary changes in circumstances were clearly negative to the best interest of the child and the impact of the decision of the Federal Magistrate was to punish the Father for the wrongful acts of the Mother.
On behalf of the Mother it was submitted that this was not an argument submitted by the Father during the course of the hearing on 7 April 2009. It was submitted that the Father addressed the Court in relation to the financial circumstances relating to payment of child support but made no submission as to the income derived by the Mother and therefore no material evidence was before the Court on this issue to give rise to a mistake of fact. The Federal Magistrate made no determination as to the impact of the Mother’s employment and/or study and thus no finding of fact exists.
Ultimately, as I have already observed, the Mother relied upon her financial circumstances as the reason for why there should be a variation as sought by her of the final orders. This was the first matter counsel for the Mother dealt with in his submissions (Transcript, 7 April 2009, p 14). What the Father has demonstrated is that there was a controversy about the financial circumstances of both parties and it was not dealt with by the Federal Magistrate. The Federal Magistrate failed to afford procedural fairness in that he did not provide the opportunity for the issues to be adequately inquired into.
As to the fourth matter the Father submitted that the front page of a child support agency letter to the parents showed a nil payment and on page 2 it was noted that the reason was because of a large overpayment by the Father. The Father submitted that the failure of the Mother to disclose the second page of the document was a clear attempt to mislead the court. It was submitted that the transcript discloses that this deception was compounded by counsel for the Mother actively denigrating the Father for allegedly not paying child support. It was submitted that this misleading of the court was further compounded by the Mother having knowledge that the Father’s reduction of income was due to collapsed lungs arising out of excessive driving to facilitate access. It was submitted that the Federal Magistrate did not have sufficient evidence before him to order that the Father travel one to two hours longer to facilitate each contact visit.
On behalf of the Mother it was submitted that in her affidavit sworn 6 April 2009 the Mother stated in paragraph 9 that the “retrospective decrease in child support means that the father does not physically pay any current child support to [the Mother] and any previous overpayment is offset against the minimal $26.00 per month which he would otherwise have been assessed at” (emphasis added). Counsel for the Mother further stated: “Not only that, the little he was paying before, he has been credited because it was an extra payment”. It was submitted that Counsel for the Mother clearly indicated that the Father was not physically paying child support due to previous overpayment.
It is not clear to me precisely what the complaint is. In his reasons the Federal Magistrate said nothing about the financial circumstances of either party. In any event, it seems to me be an aspect of the controversy about the financial circumstances of both parties that was not dealt with by the Federal Magistrate.
On behalf of the Mother it was submitted that the Mother stated that she has no knowledge as to the Father’s ongoing reduction of income. Further, that any previous medical condition pre-existed the determination of issues in 2007. It was submitted that the Father engages in a law practice and also acts as a mediator and therefore appears to have the capacity to earn income greater than currently determined by the Child Support Agency for child support purposes. It was submitted that the Mother has no knowledge of the Father’s financial circumstances and made no representation as to the actual income derived by the Father but raised the issue of his greater capacity to earn an income through alternative employment. Again, in his reasons, the Federal Magistrate said nothing about the earning capacity of either party. Once more, it seems to me to be an aspect of the controversy about the financial circumstances of both parties that was not dealt with by the Federal Magistrate. There is obviously an issue about the earning capacity of the Mother as well. The Father contended that the Mother has the capacity for paid professional employment rather than as a student.
I have already found that, in my view, the Father was denied procedural fairness and the complaints in ground 2 are, in some respects, simply further particulars of this complaint.
Ground 4
As to ground 4 of the amended notice of appeal, I had considerable difficulty understanding from the submissions precisely what the complaint is. However, in so far as it is contended that the Federal Magistrate failed to adequately consider the contentions of the Father that the lack of communication between the parents and other issues meant that the order for shared parental responsibility was not been complied with and that this was a change in circumstances then I agree with the complaint.
On behalf of the Mother it was submitted that the Father relied upon a lack of communication between the parents and that such a factor was identified and addressed in the determination of the Father’s application in 2007 by Federal Magistrate Hughes. It was also submitted that the Father had not issued any contravention application in relation to the allegations of breaches of the orders by the Mother. I do not accept these submissions as an answer to the contention that there may be a sufficient change in circumstances.
Conclusion
I am going to allow the appeal. In my view, the Federal Magistrate made a number of errors. I am satisfied that the Federal Magistrate failed to comply with the guidelines in relation to unrepresented litigants. I am satisfied that the Federal Magistrate conducted the hearing in a manner that was not authorised by the Act or the Rules and this caused a significant procedural unfairness to the Father. I am also satisfied that the Federal Magistrate failed to properly consider the material in the submissions of the Father when he applied the approach suggested in Rice v Asplund. I am also of the view that the Federal Magistrate failed to provide adequate reasons.
I regret that it has taken some time before I gave judgment. The hearing was in August 2009 and through no fault of the parties a considerable time has since elapsed.
I propose to remit the matter for redetermination by a Federal Magistrate other than Federal Magistrate Turner. On behalf of the Mother it was urged upon me that I should re-exercise the discretion rather than remit the matter for redetermination. However, the difficulty with that approach is that I am of the view that there was significant procedural unfairness. Both parties should have the opportunity to file further evidence. Both parties should have the opportunity for any areas of controversy to be properly inquired into. The hearing should be conducted in a way that both parties have the opportunity to deal with all issues; where it is very clear what is happening and why and if necessary there is oral examination of the witnesses.
Given that I propose to remit the matter for redetermination, I do not have to deal with the application filed by the Father on 31 July 2009 and the response filed by the Mother on 14 August 2009. In any event, I observe that counsel for the Mother informed me during the hearing that the Mother would not proceed with her response if I determined to re-exercise the discretion. I observe that in the response of the Mother she raised issues that support why what happened before the Federal Magistrate was inadequate.
I certify that the preceding one-hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan.
Associate:
Date:23 June 2010
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